the court can safely arrive at a conclusion that under Section 125
Cr.P.C., husband is not entitled to claim maintenance from his
wife. When the husband is not entitled to claim maintenance even
from his legally wedded wife by pressing into service Section 125
Cr.P.C., the question of claiming maintenance by a paramour from
a kept mistress or a husband from his second wife is
unimaginable. Allowing a paramour to claim maintenance from his
kept mistress or concubine under Section 125 Cr.PC., certainly
would amount to making mockery of the provisions of Cr.P.C. If
this type of petitions are allowed, the very purpose of Section 125
Cr.PC will be defeated or frustrated.
20. From a perusal of the record, it is manifest that the first
respondent instituted the proceedings against the petitioner with
an ulterior motive to wreak vengeance against her. When the
statute itself does not entitle a husband to claim maintenance,
petition under Section 125 Cr.PC is not maintainable.
HYDERABAD HIGH COURT
THE HONBLE SRI JUSTICE T. SUNIL CHOWDARY
CRIMINAL PETITION No.6481 OF 2010
Dated:15-7-2016
Smt.Malleshwaramma,
Vs
G.S.Srinivasulu,
THE HONBLE SRI JUSTICE T.SUNIL CHOWDARY
Citation: 2016 CRLJ 4066 HYD
This petition is filed under Section 482 Cr.P.C., to quash the
proceedings in M.C. No.7 of 2010 on the file of the Judicial
Magistrate of First Class, Shadnagar.
2. The facts leading to filing of the present criminal petition are
as follows: The first respondent herein filed M.C. No.7 of 2010
claiming maintenance of Rs.8,000/- per month from the petitioner
alleging that she is his legally wedded wife and the first respondent
is unable to maintain himself due to ill health. It is the case of the
first respondent that his marriage was solemnized with petitioner
on 27.10.1994 at Yadagirigutta as per the customs prevailing in
their community. Immediately after the marriage, the petitioner
joined with him to lead conjugal life and they were blessed with a
daughter by name Srilatha. The petitioner left the matrimonial
home of the first respondent along with her daughter at the
instigation of her parents. Prior to the marriage, the first
respondent helped the petitioner to prosecute her studies and get
job in Health department. The first respondent filed O.P. No.72 of
2006 for restitution of conjugal rights on the file of the court of
Senior Civil Judge, Mahabubnagar and the same was allowed on
14.11.2007. Basing on the complaint of the petitioner, the Station
House Officer, Atchampet Police Station, Mahabubnagar District
registered a case in Crime No.30 of 2007 for the offences under
Section 498A, 506 and 509 IPC against the first respondent.
3. The contention of the learned counsel for the petitioner is
three fold: (1) the petitioner is not the legally wedded wife of the
first respondent; (2) a husband is not entitled to claim
maintenance from his wife under Section 125 Cr.PC; and (3) the
proceedings against the petitioner are nothing short of abuse of
process of law; therefore it is a fit case to quash the proceedings by
exercising inherent jurisdiction under Section 482 Cr.PC. Per
contra, learned counsel for the first respondent submitted that
under Section 125 Cr.P.C., first respondent is entitled to claim
maintenance from the petitioner, who is his legally wedded wife.
She further submitted that the order passed in O.P. No.72 of 2016
clinchingly establishes that the petitioner is legally wedded wife of
the first respondent.
4. To substantiate the argument, learned counsel for the
petitioner has drawn my attention to the following decisions:
(i) Smt.Yamunabai Anantrao Adhav v Anantral Shivaram
Adhav , wherein the Honble Apex Court held as follows:
8. We, therefore, hold that the marriage of a woman in
accordance with the Hindu rites with a man having a living
spouse is a complete nullity in the eye of law and she is not
entitled to the benefit of Section 125 of the Code. The
appeal is accordingly dismissed.
(ii) Savitaben Somabhai Bhatia v State of Gujarat , wherein
the Honble Apex Court held as follows:
15. .. The marriage of a woman in accordance with the
Hindu rites with a man having a living spouse is a complete
nullity in the eye of law and she is therefore not entitled to
the benefit of Section 125 of the Code or the Hindu Marriage
Act, 1955 (in short the 'Marriage Act'). :
(iii) Buddepu Khogayya v Buddepu Kamalu , wherein this
court held as follows:
7. Therefore, the averment itself clearly indicates that there
is legally wedded wife to the first respondent by the date of
marriage of the petitioner. Hence, she cannot be treated as
wife as per the provisions of Section 125 Cr.PC and
therefore, she is not entitled for any maintenance.
5. The learned counsel for the first respondent, while
submitting that strict proof of marital relationship is not necessary
in proceedings under Section 125 Cr.P.C., relied upon the following
decisions:
(i) Badshah v Urmila Badshah Godse , wherein the Honble
Apex Court held as follows:
13.3. While dealing with the application of a destitute
wife or hapless children or parents under this provision
(Section 125 Cr.PC), the Court is dealing with the
marginalized sections of the society. The purpose is to
achieve social justice which is the constitutional vision,
enshrined in the Preamble of the Constitution of India.
14. Of late, in this very direction, it is emphasized that the
courts have to adopt different approaches in social justice
adjudication, which is also known as social context
adjudication as mere adversarial approach may special
protection and benefits to vulnerable groups in the society.
Prof. Madhava Menon describes it eloquently:
It is, therefore, respectfully submitted that social context
judging is essentially the application of equality
jurisprudence as evolved by Parliament and the Supreme
Court in myriad situations presented before courts where
unequal parties are pitted in adversarial proceedings and
where courts are called upon to dispense equal justice.
Apart from the social-economic inequalities accentuating
the disabilities of the poor in an unequal fight, the
adversarial process itself operates to the disadvantage of the
weaker party. In such a situation, the Judge has to be not
only sensitive to the inequalities of parties involved but also
positively inclined to the weaker party if the imbalance were
not to result in miscarriage of justice. This result is
achieved by what we call social context judging or social
justice adjudication .
(ii) Roshan Singh Nepali v Meena Nepali , wherein the Madhya
Pradesh High Court observed as follows:
4. In a proceeding under Section 125 of the Code, the Court
is expected to pass appropriate order after being prima facie
satisfied about the relation status of the parties.
(iii) Aijaz Ahmad Lalri v Smt.Shahjehan Begum , wherein
Allahabad High Court held as follows:
The proceedings under Section 125, Cr.PC may be akin to
civil proceedings, but one important distinction between the
two cannot be overlooked, namely, the object behind the
enactment of maintenance provisions in the Cr.PC. The
crux of the matter always is whether the party claiming
maintenance has the means or not. The law of pleading in
civil cases may be more strict, but it may not be so when
the matter of public policy and its objective are involved.
Apart from that, the powers under Section 482 Cr.PC are
exercised to secure the ends of justice and to prevent abuse
of the process of any law and when the clear finding of fact
is that the opposite parties have no means to maintain
themselves, the Court will not exercise any such inherent
powers in favour of the applicant on account of any defect
in pleadings.
(iv) Pyla Mutyalamma v Pyla Suri Demudu , wherein the
Honble Apex Court held at Para No.1 as follows:
Under the law, a second wife whose marriage is void on
account of survival of the previous marriage of her husband
with a living wife is not a legally wedded wife and she is,
therefore, not entitled to maintenance under Section 125
Cr.PC for the sole reason that law leans in favour of
legitimacy and frowns upon bastardy . But, the law also
presumes in favour of marriage and against concubinage
when a man and woman have cohabited continuously for a
long number of years and when the man and woman are
proved to have lived together as man and wife, the law will
presume, unless the contrary is clearly proved, that they
were living together in consequence of a valid marriage and
not in a state of concubinage.
6. From the above case law the following principles can be
deduced.
(1) If a man and woman lived together for such a long time as wife
and husband, the wife is entitled to claim maintenance under
Section 125 Cr.P.C., notwithstanding establishment of marriage
as per the provisions of the Hindu Marriage Act;
(2) A man who marries second time by concealing the subsistence of
his valid marriage with another woman cannot escape from
payment of maintenance to the second wife under Section 125
Cr.PC;
(3) A woman who marries a man knowing fully well about subsistence
of his valid marriage with another woman is not entitled to claim
maintenance under Section 125 Cr.PC.
(4) While dealing with the petitions filed under Section 125 Cr.PC
prima facie proof of relationship is sufficient to award
maintenance.
7. Let me consider the facts of the case on hand in the light of
the above legal principles. Establishment of prima facie
relationship of wife and husband is sine qua non to file petition
under Section 125 Cr.PC. If the parties to the proceedings under
Section 125 Cr.P.C., are Hindus, the claimant has to establish that
the marriage with the first respondent is legally valid and their
marriage is not hit by Sub-section (1) of Section 5 of the Hindu
Marriage Act.
8. The crucial question that falls for consideration is whether
the first respondent is entitled to claim maintenance from the
petitioner by filing petition under Section 125 Cr.P.C or not. As
per the averments made in the petition (M.C.), the marriage of the
first respondent was performed with the petitioner on 27.10.1994
at Yadagirigutta as per the customs prevailing in their community.
Basing on the petition averments, one can safely come to a
conclusion that the petitioner is the only legally wedded wife of the
first respondent. The first respondent filed O.P. No.72 of 2006 on
the file of the court of Senior Civil Judge, Mahabubnagar against
the petitioner under Section 9 of the Hindu Marriage Act for
restitution of conjugal rites and the same was allowed on
14.11.2007. The first respondent is placing much reliance on the
order in the O.P. to establish that the petitioner is his legally
wedded wife. It is not in dispute that the petitioner did not contest
the O.P.; therefore, the court passed the ex parte order. Basing on
the complaint lodged by the petitioner, the Station House Officer,
Atchampet Police Station registered a case in Crime No.30 of 2007
against the first respondent for the offences under Sections 498A,
506 and 509 IPC. The first respondent obtained anticipatory bail
in Crl.P. No.6818 of 2007 on 18.11.2007. For better appreciation
of the rival contentions, it is not out of place to extract paragraph
No.2 of Crl.P.No.6818 of 2007.
2. As per the said report, the petitioner herein was married
and was having three children. He developed contact with
her in the year 1994 when she was working at Government
Civil Hospital, Perur. They together lived for 10 years at
Shadnagar, Mahaboobnagar District and they were blessed
with a daughter aged 11 years. It is said that suspecting
her character and making wild allegations, he used to abuse
her and threaten her saying that he will kill her and her
daughter. He also used to abuse on Telephone the staff
working in the hospital.
9. A reading of the above paragraph clearly shows that the first
respondent has taken a specific stand that he developed intimacy
with the petitioner in the year 1994. If the contents of this
criminal petition are taken into consideration, the first respondent
did not marry the petitioner. The first respondent also filed
Crl.P.No.2745 of 2007 seeking to quash the criminal proceedings
against him in Crime No.30 of 2007 on the file of the Station House
Officer, Atchampet Police Station. This court, vide order dated
20.7.2007, allowed the criminal petition and quashed the criminal
proceedings against the first respondent in Crime No.30 of 2007 for
the offence under Section 498A IPC. The relevant observations in
the order read as follows:
Even if the entire allegations in the complaint are taken as
true and correct, they do not go to show that the de facto
complainant is the legally wedded wife of the petitioner. At
best, it would go to show that the de facto complainant was
kept mistress. It is also stated that the petitioner was
having wife and three children. The petitioner was
harassing her after making her as his second wife. He was
suspecting the conduct of the de facto complainant and was
abusing her in vulgar language and he also threatened to
kill her and her child. Therefore, the allegations do not
show prima facie case of the offences under Sections 506
and 509 IPC. Hence, question of quashing the proceedings
does not arise. Prima facie Section 498A IPC has no
application. Hence, the proceedings are liable to be
quashed.
10. This court made an observation that the petitioner is only
kept mistress of the first respondent basing on the stand taken by
the first respondent in Crl.P. No.2745 of 2007.
11. Before filing M.C. No.7 of 2010, the first respondent has
taken specific stand that he developed intimacy with petitioner in
the year 1994 which resulted in the birth of Srilatha. The fact
remains that the petitioner was having legally wedded wife before
developing contacts with petitioner in 1994. Even as per the case
of the first respondent, he was blessed with three children through
his first wife. In order to constitute a valid marriage, neither of the
partiesif they are Hindusshall have a spouse living at the time of
marriage in view of Sub-section (1) of Section 5 of the Hindu
Marriage Act.
12. Having regard to the facts and circumstances of the case and
also the principles enunciated in the decisions cited supra, I am
unable to accede to the contention of the learned counsel for the
first respondent that the petitioner is the legally wedded wife of the
first respondent.
13. Even assuming, but not admitting, that the first respondent
is husband of the petitioner, the point to be determined in this
case is, whether a husband is entitled to claim maintenance from
wife by filing petition under Section 125 Cr.PC. It is not out of place
to extract hereunder the relevant portion of Section 125 Cr.PC.
125. Order for maintenance of wives, children and
parents:
(1) If any person having sufficient means neglects or refuses
to maintain
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether
married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married
daughter) who has attained majority, where such child is,
by reason of any physical or mental abnormality or injury
unable to maintain itself, or
(d) his father or mother, unable to maintain himself or
herself, a Magistrate of the first class may, upon proof of
such neglect or refusal, order such person to make a
monthly allowance for the maintenance of his wife or such
child, father or mother, at such monthly rate as such
magistrate thinks fit, and to pay the same to such person as
the Magistrate may from time to time direct.
14. The object of Section 125 Cr.PC is to wipe off the tears of
destitute wife, hapless legitimate or illegitimate children and
parents. The Parliament in its wisdom incorporated Section 125
Cr.PC to achieve the above social object. There is a social and legal
obligation on the part of a man to look after the welfare of his wife,
legitimate and illegitimate minor children and parents. There is no
ambiguity in the language employed in Section 125 Cr.PC.
15. It is a cardinal principle of interpretation of statutes that the
court shall not substitute or omit any of the words used in the
statute unless there is ambiguity in it. The court has to interpret
the words used in a statute in the context and the purpose for
which it is used. In interpreting a statutory provision, the first and
foremost rule of interpretation is the literal construction. All that
the Court has to see, at the very outset, is what the provision says.
If the provision is unambiguous and if, from the provision, the
legislative intent is clear, the Court need not call into aid the other
rules of construction of statutes. The other rules of construction of
statutes are called into aid only when the legislative intent is not
clear.
16. In Padma Sundara Rao v State of T.N. , the Honble Apex
Court in paragraph No.12 (relevant portion) observed as follows:
It is well-settled principle in law that the court cannot
read anything into a statutory provision which is plain and
unambiguous. A statute is an edict of the legislature. The
language employed in a statute is the determinative factor
of legislative intent. The first and primary rule of
construction is that the intention of the legislation must be
found in the words used by the legislature itself. The
question is not what may be supposed and has been
intended but what has been said.
17. It appears, the Parliament, in its wisdom, intentionally not
included the words husband or spouse after the words his wife
and preceding the words unable to maintain in clause (a) of Sub-
section (1) of Section 125 Cr.PC; therefore, a husband is not
entitled to file application under Section 125 Cr.PC claiming
maintenance from the wife. My view is supported by Section 24 of
HM Act, which reads as follows:
24 Maintenance pendente lite and expenses of
proceedings. Where in any proceeding under this Act it
appears to the court that either the wife or the husband, as
the case may be, has no independent income sufficient for
her or his support and the necessary expenses of the
proceeding, it may, on the application of the wife or the
husband, order the first respondent to pay to the petitioner
the expenses of the proceeding, and monthly during the
proceeding such sum as, having regard to the petitioner's
own income and the income of the first respondent, it may
seem to the court to be reasonable:
Provided that the application for the payment of the
expenses of the proceeding and such monthly sum during
the proceeding, shall, as far as possible, be disposed of
within sixty days from the date of service of notice on the
wife or the husband, as the case may be.
18. A perusal of Section 24 of H.M. Act makes it clear that not
only the wife but also the husband is entitled to claim maintenance
on showing that he has no independent source of income.
However, the husband will have to satisfy the court that either due
to physical or mental disability he is handicapped to earn and
support his livelihood.
19. After reading Section 24 of H.M. Act and Section 125 Cr.P.C.,
the court can safely arrive at a conclusion that under Section 125
Cr.P.C., husband is not entitled to claim maintenance from his
wife. When the husband is not entitled to claim maintenance even
from his legally wedded wife by pressing into service Section 125
Cr.P.C., the question of claiming maintenance by a paramour from
a kept mistress or a husband from his second wife is
unimaginable. Allowing a paramour to claim maintenance from his
kept mistress or concubine under Section 125 Cr.PC., certainly
would amount to making mockery of the provisions of Cr.P.C. If
this type of petitions are allowed, the very purpose of Section 125
Cr.PC will be defeated or frustrated.
20. From a perusal of the record, it is manifest that the first
respondent instituted the proceedings against the petitioner with
an ulterior motive to wreak vengeance against her. When the
statute itself does not entitle a husband to claim maintenance,
petition under Section 125 Cr.PC is not maintainable.
(i) In State of Haryana v. Bhajan Lal , the Honble Supreme
Court held at clause (7) of paragraph No.102 as follows:
(7) Where a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance
on the accused and with a view to spite him due to
private and personal grudge.
(ii) In V.Y. Jose v. State of Gujarat , the Honble Supreme Court
held at paragraph No.23 as follows:
23. Section 482 of the Code of Criminal Procedure saves the
inherent power of the court. It serves a salutary purpose viz.
a person should not undergo harassment of litigation for a
number of years although no case has been made out
against him.
(iii) In State of Karnataka v L.Muniswamy , the Supreme
Court observed that the wholesome power under Section 482
Cr.P.C., entitles the High Court to quash proceedings when it
comes to the conclusion that allowing the proceedings to
continue would be an abuse of the process of the court or that
the ends of justice require that the proceedings ought to be
quashed.
(iv) A three-Judge Bench of the Supreme Court in Inder
Mohan Goswami v State of Uttaranchal , after examining the
scope and ambit of Section 482 of the Criminal Procedure Code,
observed that inherent powers under Section 482 should be
exercised for the advancement of justice. If any abuse of the
process leading to injustice is brought to the notice of the Court,
then the Court would be fully justified in preventing injustice by
invoking the inherent powers of the Court.
21. Having regard to the facts and circumstances of the case and
also the principles enunciated in the cases cited supra, I am of the
considered view that continuation of the proceedings against the
petitioner would certainly amount to abuse of process of law.
Therefore, it is a fit case to quash the proceedings against the
petitioner in order to secure ends of justice.
22. In the result, the criminal petition is allowed, quashing the
proceedings in M.C.No.7 of 2010 on the file of the Judicial
Magistrate of First Class, Shadnagar. Miscellaneous petitions, if
any pending in this criminal petition, shall stand closed.
_________________________
T.SUNIL CHOWDARY, J
July 15, 2016.
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